Kenya Anti-Corruption Commission v Galerius Investment Ltd, Jabu Salim, Zablon Angwata, Wilson Gachanja & Chief Land Registrar [2020] KEELC 3583 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

ELC NO. 88 OF 2019

KENYA ANTI-CORRUPTION COMMISSION...............................PLAINTIFF

VERSUS

GALERIUS INVESTMENT LTD.............................................1ST DEFENDANT

JABU SALIM.............................................................................2ND DEFENDANT

ZABLON ANGWATA................................................................3RD DEFENDANT

WILSON GACHANJA..............................................................4TH DEFENDANT

CHIEF LAND REGISTRAR.....................................................5TH DEFENDANT

RULING

(Application for injunction; plaintiff claiming that suit land is a public access road and seeking to have 1st defendant restrained from dealing in it or undertaking any construction; application not opposed; application allowed.)

1.  This suit was commenced through a plaint which was filed on 16 May 2019. The case of the plaintiff is that the land parcel Kwale/Diani Beach Block/1072 (the suit land) is on land reserved as a public beach access road. It is the case of the plaintiff that this land was illegally allocated to one Boy Juma Boy on 23 June 1994 and a Certificate of Lease illegally issued to the 1st defendant. It is pleaded that the 2nd defendant prepared a fraudulent Part Development Plan (PDP) to facilitate the irregular allocation. The 3rd and 4th defendants who served as Commissioners of Land, are also alleged to have participated in the fraud and/or were negligent. In the suit, the plaintiff wishes to recover the land by a cancellation of the title of the 1st defendant.

2.  Alongside the plaint, the plaintiff filed an application seeking orders to have the 1st defendant restrained from dealing with the land or undertaking construction in it pending the hearing of the suit. It is that application which is the subject of this ruling. Despite being served, the 1st defendant has not filed any response to the application and has indeed not entered an appearance to the suit.

3.  The supporting affidavit is sworn by Samuel Murage, an investigator working with the plaintiff. He has annexed various documents which he has averred demonstrate that the suit land is public land. I have no material tendered by the 1st defendant to contradict what the plaintiff has contended and I am of the view that the plaintiff has thus demonstrated a prima facie case with a probability of success. If the injunction is not granted, further dealings may be entered into and/or construction undertaken, which may defeat this suit. The balance of convenience also tilts towards maintaining the land until this suit is heard and determined.

4.  I therefore allow the application. I issue an order of injunction restraining the 1st defendant from selling, charging, leasing, sub-dividing, or in any other way entering into any dealings over the suit land. I also issue an order of inhibition, restricting the registration of any disposition in the register of the suit land.

5.  Costs will be to the plaintiff.

6.  Orders accordingly.

DATED, SIGNED and DELIVERED at MOMBASA this 12th day of February, 2020.

_______________________

MUNYAO SILA,

JUDGE.

IN THE PRESENCE OF:

Ms. Abdulrahim for the plaintiff.

Mr. Mogaka for the 3rd defendant.

Mr Mwandeje for the 5th defendant.

Other parties; Absent.

Court Assistant; David Koitamet.